Leasehold Covenants: Introduction

Question 1

As well as being an estate in land, a lease is a ________.

Answer 1

Contract

Question 2

How can a fixed-term lease be created?

Answer 2

Expressly

Question 3

How can a periodic lease be created?

Answer 3

Expressly or impliedly

Question 4

What is a positive covenant?

Answer 4

A positive covenant requires a person to perform an action, such as carrying out work or spending money

Question 5

What is a negative covenant?

Answer 5

A negative (or restrictive) covenant imposes limitations on a person’s actions concerning the property, such as prohibiting certain uses.

Question 6

What case involved a dispute between a tenant and their landlord over the breach of an implied covenant for quiet enjoyment, resulting in a judgment in favour of the tenant with £100 in damages?

Answer 6

Kenny v Preen [1963]

Question 7

Which case addressed the issue of noise transmission between adjoining council flats and established that the landlord was not liable for ordinary noise levels due to the structure of the building?

Answer 7

Southwark LBC v Mills [2001]

Question 8

In which case was the principle established that tenants must use the property in a ‘tenant-like manner,’ meaning that they are responsible for treating the property with the care a reasonable tenant would, but not for substantial repairs or wear and tear?

Answer 8

Warren v Keen [1954]

Question 9

In which case was it decided that modifications made during repairs to address inherent defects in a property could still fall within a landlord’s covenant to repair, making the tenant liable for the cost through service charges?

Answer 9

Ravenseft Properties Ltd v Davstone (Holdings) Ltd [1980]

Question 10

In which case was it determined that a landlord’s statutory duty ‘to keep in repair’ does not extend to latent defects unknown to the landlord and without notice from the tenant?

Answer 10

O’Brien v Robinson [1973]

Question 11

What are the three main aspects of the dwelling-house that the lessor is implied to keep in repair under s 11(1) of the Landlord and Tenant Act 1985?

Answer 11

The lessor is implied to keep in repair:-

1. the structure and exterior of the dwelling-house, including drains, gutters, and external pipes,
2. the installations for the supply of water, gas, electricity, and for sanitation, and
3. the installations for space heating and heating water.

Question 12

How does s 11(1A) of the Landlord and Tenant Act 1985 extend the lessor’s repairing obligations if the dwelling-house forms part of a larger building?

Answer 12

If the dwelling-house is part of a larger building, the lessor’s obligations extend to parts of the building in which they have an estate or interest, and to installations serving the dwelling-house, whether part of the building or owned/controlled by the lessor.

Question 13

Under s 11(1B) of the Landlord and Tenant Act 1985, what condition limits the lessor’s obligation to carry out works or repairs?

Answer 13

The lessor’s obligation to carry out works or repairs is limited to issues where the disrepair affects the lessee’s enjoyment of the dwelling-house or any common parts they are entitled to use.

Question 14

What are the exceptions to the lessor’s repairing covenant under s 11(2) of the Landlord and Tenant Act 1985?

Answer 14

The lessor is not required to

(1) carry out repairs that the lessee is liable for due to their duty to use the premises in a tenant-like manner,

(2) rebuild or reinstate the premises in cases of damage by inevitable accidents like fire or floods, or

(3) maintain items the lessee can remove

Question 15

What factors determine the standard of repair required by the lessor’s repairing covenant under s 11(3) of the Landlord and Tenant Act 1985?

Answer 15

The standard of repair is determined by considering the age, character, and prospective life of the dwelling-house, and the locality in which it is situated.

Question 16

What defence is provided in s 11(3A) for lessors unable to comply with the repairing covenant due to lack of rights to carry out external works or repairs?

Answer 16

The lessor can defend against a failure to comply with the repairing covenant by proving that they used all reasonable endeavours to obtain the necessary rights to carry out the works or repairs but were unable to do so.

Question 17

How does s 11(4) of the Landlord and Tenant Act 1985 restrict covenants by the lessee for the repair of the premises?

Answer 17

Section 11(4) stipulates that any repair covenant made by the lessee is not effective for the responsibilities outlined in s 11(1)(a) to (c), which include the structure and exterior, installations for utilities and sanitation, and heating systems.

Question 18

What examples of repair covenants does s 11(5) of the Landlord and Tenant Act 1985 say will be void by virtue of s 11(4)

Answer 18

1. to put in repair or deliver up in repair,
2. to paint, point or render,
3. to pay money in lieu of repairs by the lessee, or
4. to pay money on account of repairs by the lessor.

Question 19

What entry rights does s 11(6) of the Landlord and Tenant Act 1985 grant the lessor?

Answer 19

Section 11(6) provides the lessor, or their authorised representative, the right to enter the leased premises at reasonable times during the day, given 24 hours’ written notice, for the purpose of inspecting the condition and state of repair of the property.

This ensures the lessor can monitor the property’s upkeep and address any necessary repairs, aligning with their obligations under s 11(1).

Question 20

What is prohibited by s 12(1) of the Landlord and Tenant Act 1985 in terms of lease agreements?

Answer 20

Section 12(1) declares as void any covenant or agreement that attempts to exclude or limit the lessor’s obligations or the lessee’s immunities under Section 11, or that authorises forfeiture or imposes penalties on the lessee for enforcing or relying upon those obligations or immunities, unless such provisions were authorised by the county court.

Question 21

Under what condition can the county court authorise modifications to the repairing obligations outlined in s 11, as per s 12(2) of the Landlord and Tenant Act 1985?

Answer 21

Section 12(2) allows the county court, with the consent of the parties, to authorise provisions in a lease or related agreement that exclude or modify the repairing obligations specified in Section 11. This can only be done if the court deems it reasonable, considering all circumstances of the case and the lease’s other terms and conditions.

Question 22

When does s 11’s repairing obligations apply to leases according to s 13(1) of the Landlord and Tenant Act 1985?

Answer 22

Section 11’s repairing obligations apply to leases of a dwelling-house granted on or after 24th October 1961 for terms of less than seven years, as specified in s 13(1) of the Landlord and Tenant Act 1985.

Question 23

What additional leases does s 13(1A) of the Landlord and Tenant Act 1985 extend s 11’s repairing obligations to?

Answer 23

S 13(1A) extends s 11’s repairing obligations to leases granted on or after the enforcement date of section 166 of the Localism Act 2011, which are either secure tenancies for seven years or more by specified landlords or assured tenancies for seven years or more by private registered providers of social housing, provided they are not shared ownership leases.

Question 24

What criteria in s 13(1B) define “assured tenancy,” “secure tenancy,” and “shared ownership lease” under the Landlord and Tenant Act 1985?

Answer 24

“Assured tenancy” and “secure tenancy” are defined by the Housing Act 1988 and Housing Act 1985, respectively, and “shared ownership lease” refers to a lease granted upon payment related to the property’s value or one that entitles the lessee to a value-related sum, as outlined in s 13(1B).

Question 25

What three criteria does s 13(2) of the Landlord and Tenant Act 1985 set out for a lease term to determine the applicability of the repair covenant as implied by s 11?

Answer 25

1. Ignoring any term period before the lease’s actual start date, treating the lease as beginning from the grant.
2. Considering leases that the lessor can end before seven years as having a term of less than seven years.
3. Consider considering leases with a renewal option that extends the total term to seven years or more as leases for more than seven years, except when the lessor can end the lease before the seven-year mark.

Question 26

What are the key differences between implied and express covenants regarding rent payment in a lease?

Answer 26

Implied rent covenants require the tenant to pay rent in arrears, meaning after occupying the property. Express rent covenants, preferred by most landlords, mandate that rent be paid upfront, before the tenant occupies the property.

Question 27

How do leases commonly restrict a tenant’s use of the property?

Answer 27

Leases often contain covenants that restrict the tenant’s use of the property, such as;
1. limiting the use to residential purposes only and
2. prohibiting any business or commercial activities.

If there is no restriction, the tenant can use the property for any purpose, subject to planning permission.

Question 28

What is an alienation covenant in a lease, and what forms can it take?

Answer 28

An alienation covenant restricts the tenant’s right to deal with the lease, such as selling it or creating a sublease.

It can be:-
1. absolute, where any dealing is a breach, or
2. qualified, where dealings are allowed with the landlord’s consent.

Question 29

What does Section 19(1)(a) of the Landlord and Tenant Act 1927 specify about a landlord’s consent in qualified alienation covenants?

Answer 29

This section implies that in a qualified alienation covenant, the landlord must not unreasonably withhold consent.

Additionally, the landlord must provide consent or reasonable refusal grounds within a reasonable period after the tenant’s request.

Question 30

What is an authorised guarantee agreement (AGA) as per the Landlord and Tenant Act 1927?

Answer 30

An authorised guarantee agreement, as introduced by Section 19(1A) of the Landlord and Tenant Act 1927 for leases granted on or after 1 January 1996, requires a tenant wishing to assign a lease to guarantee the incoming tenant’s performance of the lease covenants, effectively maintaining liability even after the lease is assigned.